Forbes v. Boston and Lowell Railroad Co.

• Decision Date: 29 June 1882
• Citation: 133 Mass. 154
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John M. Forbes & others v. Boston and Lowell Railroad Company. Same v. Fitchburg Railroad Company

133 Mass. 154

John M. Forbes & others v. Boston and Lowell Railroad Company.

Same v. Fitchburg Railroad Company

Supreme Court of Massachusetts

June 29, 1882

Suffolk.

W. G Russell & J. B. Warner, for the plaintiffs.

J. G Abbott & S. A. B. Abbott, for the defendant in the first case.

E. D Sohier & C. A. Welch, for the defendant in the second case.

Morton, C. J. Endicott & Devens, JJ., absent.

OPINION

Morton, C. J.

The first case is an action of tort, containing a count for the conversion of a quantity of corn and a count for the conversion of a quantity of wheat. As different considerations apply to the two counts, they must be treated separately.

On or about October 20, 1879, Gallup, Clark and Company, grain-dealers in Chicago, in response to an order from Foster and Company, forwarded to Boston fifty carloads of corn, by the National Despatch Fast Freight Line, which is an association of several railroad companies, whose roads make a continuous line from Chicago to Boston, the defendant's road being a part of the line. Upon the shipping of the corn, an inland bill of lading was issued, by which it was consigned to the order of Gallup, Clark and Company, at Boston. Gallup, Clark and Company drew a draft upon Foster and Company for the price of the corn, attached to it the bill of lading, and forwarded both to the Tremont National Bank of Boston. On October 24, 1879, Foster and Company paid to the bank the amount of the draft, and the draft and bill of lading were delivered to them. Immediately upon obtaining the draft and bill of lading, Foster and Company indorsed them to the plaintiffs, as security for an advance then made by the plaintiffs to the full amount of the draft, and they have held them ever since. The corn mentioned in the bill of lading was received and transported by the defendant, arriving in Boston on October 30,1879. It remained in its cars until December 12, 1879, when by the orders of Foster and Company it was shipped on board a vessel for Cork, and exported to Ireland. Foster and Company did not produce and present to the defendant the bill of lading, but represented that it was in their possession.

Upon these facts, it is too clear to admit of any doubt, that, by the transfer of the draft and bill of lading by Foster and Company to the plaintiffs, the title and property in the corn passed to them. The bill of lading, though not strictly a negotiable instrument like a bill of exchange, was the representative of the property itself; it was the means by which the property was put under the power and control of the plaintiffs, and the delivery of it was for most purposes equivalent to an actual delivery of the property itself.

The transaction between Foster and Company and the plaintiffs was not in form or in effect a mortgage, so that, as contended by the defendant, it must be recorded in order to have validity; it was a transfer and delivery of the property. The clear intent of the parties was that the property in the corn should pass to the plaintiffs as security for the advance made by them. Whether they took an absolute title with a liability to account for the proceeds, or a title as pledgees, is not material, as all the authorities show that they took either a general or a special property in the corn, which entitles them to recover of any one who wrongfully converts it. De Wolf v. Gardner, 12 Cush. 19. Cairo National Bank v. Crocker, 111 Mass. 163. Green Bay National Bank v. Dearborn, 115 Mass. 219. Chicago National Bank v. Bayley, 115 Mass. 228. Hathaway v. Haynes, 124 Mass. 311. Gibson v. Stevens, 49 U.S. 384, 8 HOW 384, 12 L.Ed. 1123. Dows v. National Exchange Bank, 91 U.S. 618, 23 L.Ed. 214. Numerous other cases might be cited. The delivery of the bill of lading was in law the delivery of the property itself, and it was not necessary that the plaintiffs should take immediate possession of it upon its arrival, or that they should give notice to the carrier or warehouseman who held the property. Farmers & Mechanics' National Bank v. Logan, 74 N.Y. 568. The Thames, 81 U.S. 98, 14 Wall. 98, 20 L.Ed. 804. Meyerstein v. Barber, L. R. 2 C. P. 38, 661, and L. R. 4 H. L. 317. It is true that the plaintiffs might by their subsequent laches defeat their right to assert their title. If they permitted the property to remain under the control of their assignors, and held them out to the world as having the right to deal with the property, they might be estopped from setting up their title. But the authorities are decisive to the point that, by the transfer from Foster and Company, they took a title as purchasers of the corn which entitles them to maintain this action, unless they have lost the right by their laches, upon proving a conversion by the defendant.

The next question is whether there was a conversion by the defendant. It is settled that any mis-delivery of property by a carrier or warehouseman to a person unauthorized by the owner or person to whom the carrier or warehouseman is bound by his contract to deliver it, is of itself a conversion, which renders the bailee liable in an action of tort in the nature of trover, without regard to the question of his due care or negligence. Hall v. Boston & Worcester Railroad, 14 Allen 439. By the bill of lading, and by the way-bill which was sent to the defendant in the place of a duplicate bill of lading, the corn was to be delivered to the order of Gallup, Clark and Company. The defendant contracted to deliver it to such person as Gallup, Clark and Company should order, and could not without violating its contract deliver it to any other person. By delivering it to Foster and Company, therefore, the defendant became liable for a conversion, unless it shows some valid excuse. Newcomb v. Boston & Lowell Railroad, 115 Mass. 230. Alderman v. Eastern Railroad, 115 Mass. 233. The record before us does not show any laches or any act of the plaintiffs which can excuse or justify this mis-delivery. They did not hold Foster and Company out to the world or to the defendant as one entitled to control the property. Indeed, it is admitted that the defendant did not know, until long after the delivery, that the plaintiffs had any connection with the property, or with Foster and Company. The plaintiffs did nothing to mislead the defendant. They had the right to rely upon the facts that they held the bill of lading, and that, according to the ordinary course of business, the goods could not be obtained except upon its production. The defendant saw fit to deliver them to Foster and Company without requiring them to produce the bill of lading, relying upon their representation that they were the holders of it. It took the risk of their truthfulness, and cannot now shift that risk upon the plaintiffs, who have done nothing to mislead or deceive the defendant. We are, for these reasons, of opinion that the defendant is liable for the value of the corn described in the first count of the declaration.

In the case of the wheat, there are some facts proved at the trial which lead us to a different result. By the bills of lading and the way-bills, the wheat was consigned to John H. Foster and Company at Boston. The fact that they did not contain the words "or order," or other equivalent words, so as to make them upon the face quasi negotiable, is not important. The bill of lading was yet the representative of the wheat, and its transfer and delivery to the plaintiffs vested in them the title to the property, as against the consignees and their creditors. But the presiding justice of the Superior Court who heard the case has found as a fact "that it was the custom of the railroads terminating in Boston to deliver to the consignee goods 'billed straight' as it is termed, that is, billed to a particular person, not to order, when they were satisfied of the identity of the...